McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067

New South Wales Supreme Court

CITATION : McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067

HEARING DATE(S) : 06/09/07

JUDGMENT DATE : 4 October 2007

JUDGMENT OF : James J

DECISION : Summons dismissed

CATCHWORDS : Motor Accidents Compensation Act - Pt 3.4 - Review Panel

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Workplace Injury Management and Workers Compensation Act

Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090 Campbelltown City Council v Vegan and Ors [2006] NSWCA 284 CASES CITED : Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839 Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 Smith v Liquip Services Pty Ltd [2007] NSWSC 687 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

PARTIES : John Charles McKee v Allianz Australia Insurance Limited

FILE NUMBER(S) : SC 30038/07

C Jackson - Plaintiff E Romaniuk - First Defendant COUNSEL : Submitting appearance - Second Defendant MA Robinson - Third Defendant

Rishworth Dodd & Co - Plaintiff SOLICITORS : TL Lawyers - First Defendant Submitting appearance - Second Defendant IV Knight Crown Solicitor - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

THURSDAY, 4 OCTOBER 2007

30038/07 JOHN CHARLES McKEE v ALLIANZ AUSTRALIA INSURANCE LIMITED

JUDGMENT 1 HIS HONOUR: These proceedings were brought by the plaintiff John Charles McKee against the three defendants, Allianz Australia Insurance Limited (the first defendant), an Appeal Panel constituted under s 63 of the Motor Accidents Compensation Act 1999 ("the MAC Act" or "the Act") (the second defendant) and the Motor Accidents Authority of New South Wales (the third defendant). At the hearing the name of the second defendant was changed to a medical assessor's review panel convened under Pt 3.4 of the Motor Accidents Compensation Act 1999. 2 At the hearing the principal contest was between the plaintiff and the first defendant, which is a licensed insurer under the Act. The second defendant filed a submitting appearance and did not take any active part in the proceedings. The third defendant, which is constituted by the Act, also filed a submitting appearance. However, after having been served with the affidavit evidence and written submissions of the plaintiff and the first defendant, the third defendant, at the commencement of the hearing before me, sought leave to participate in the proceedings. I granted the leave sought. The proceedings clearly relate to the powers and procedures of the third defendant and, in any event, the position of the third defendant is distinguishable from the position of the Australian Broadcasting Tribunal in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 esp at 35-36. At the hearing counsel for the third defendant made oral submissions to the Court. 3 At the hearing there was no dispute about the facts of the case. The evidence was largely comprised in three documents:- 1. A certificate by a medical assessor Dr Long pursuant to s 61 of the Act which incorporates a statement by Dr Long of his reasons for making the certificate ("the assessment"). 2. An application pursuant to s 63 of the Act for a review of the assessment by a review panel of medical assessors ("the application for review"). 3. A certificate of determination by the review panel pursuant to s 63(4) of the Act, which incorporates a statement of the reasons of the review panel ("the review panel certificate"). 4 Before summarising some of the facts stated in these documents, it is convenient to set out some of the provisions of the Act.